A little known fact about yrs truly: I grew up in Roanoke,
Virginia. As a kid, I recall vividly how absolutely nothing ever seemed
to happen in Roanoke. Today, that has changed. A TV news station's
former employee murdered
two journalists on live television while they were filming an on-site
interview at Smith Mountain Lake near Roanoke. The murderer was
apparently a former employee who was terminated earlier this year. Given
my history living in the area and the fact that one of the victims was a fellow
JMU grad, this attack hits close to home for me. Tragically, however, this horrific event is
just the latest case of workplace violence that has been plaguing employers for
decades.
According to the most recent DOL
statistics, in 2010, there were 506 workplace homicides including 405 due to
shootings.
The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries
(CFOI) reported 14,770 workplace homicides between 1992 and 2012. In addition to today’s tragedy, another
famous example of this type of violence occurred in 2014 in Oklahoma. In that case a food plant employee drove from
his termination meeting with HR to another building at the plant and beheaded
one employee and stabbed another.
In addition to workplace homicides, there are ever increasing numbers
of registered sex offenders who are in the workplace or seeking
employment. I recently have had several clients
who were dealing with employees convicted of indecent exposure or other
criminal sexual acts outside of the workplace.
While employers must grapple with these issues and strive to make their
workplace as safe as possible for employees, clients, vendors, and customers,
they are often forced with difficult choices.
For instance, the EEOC’s recent guidelines on criminal background checks
create potential liability for employers whose background check policies create
a “disparate impact” on minority groups.
According to EEOC statistics, these groups tend to have a disproportionate
rate of criminal convictions and thus by refusing to hire them an employer may
be discrimination. According to the
EEOC, an employer must consider:
·
The nature and gravity of the offense or conduct;
·
The time that has passed since the offense or conduct and/or completion
of the sentence; and
·
The nature of the job held or sought
The EEOC
Guidance further underscores the importance of an "individualized
assessment" prior to an adverse action based on a criminal record. Of course, some state laws require criminal
background checks for industries such as nursing homes and daycare. But other industries continue to struggle
with the desire to provide a safe workplace and the EEOC guidelines on criminal
background checks.
To add to the confusion, there can
also be liability if an employer does not terminate an employee who is known to
have certain criminal propensities. Many states, including
Michigan, recognize the torts of negligent hiring, supervision, and retention of
an unsafe employee. See Bradley v Stevens, 329 Mich 556, 46 NW2d 382 (1951) (employer who knew or
should have known of employee’s violent propensities and criminal record before
employee’s commission of intentional tort on customer liable for damages to
customer). To hold the employer liable
for negligent hiring, supervision, or retention of
an employee, the plaintiff must establish that (1) the company owed a duty to
the victim, (2) the company breached that duty, and (3) the breach of duty was
the proximate cause of plaintiff’s injuries. The amount of public contact the
employee has, the nature of that contact, and the employer’s knowledge of the
employee’s dangerous propensities are factors considered by courts. For the claims to succeed, the plaintiff
typically must establish the threat of physical injury or actual physical
injury. In Vennittilli v Primerica, Inc,
943 F Supp 793 (ED Mich 1996), for instance, the court limited the application
of the negligent hiring doctrine to circumstances in which an employee
committed a foreseeable act of physical violence.
If an employer
is found to have a duty of care to protect third parties coming in contact with
its employees, it will be found to have breached this duty if it knew or should
have known of the employee’s violent acts or bad character but nevertheless
hired or retained that employee or failed to reasonably investigate the
employee’s background. Tyus v Booth, 64 Mich
App 88, 235 NW2d 69 (1975).
For employers who do conduct criminal background checks, there can also
be potential liability if the employer denies employment based on a background
check where the proper Fair Credit Reporting Act disclosures were not provided.
Under the FCRA, if a person is not hired or retained in a job based on a “consumer
report,” from a consumer reporting agency (including criminal records), the
employer must provide notices to the employee that include: (1)
providing preliminary adverse action notice to consumer, along with copy of
consumer report and A Summary of Your Rights under the Fair Credit Reporting
Act, (2) allowing consumer a designated period of time to contact CRA if
consumer wishes to dispute any information in consumer report, (3) providing
CRA contact information, 4) providing a final adverse action notice to consumer
if a final adverse employment decision is made. 15 USC 1681a, 1681b.
For employers the legal balancing act will
continue. As a practical matter, there
may be nothing an employer can do to prevent an off-site shooting like the one
that occurred near Roanoke or a rampage by a knife wielding employee. But employers should continue to try to weed
out potentially violent individuals or those who have criminal sexual
propensities. The choice may come down
to which lawsuit the employer would rather defend: a wrongful death or
negligent retention case coming after a murder; or, an employment
discrimination claim case based on the failure to hire or retain a potentially
violent individual.
